AXL17 v Minister for Immigration and Border Protection (No 2) [2019] FCA 778

AXL17 v Minister for Immigration and Border Protection (No 2) [2019] FCA 778

Leave to rely on the new grounds was refused because none had sufficient merit. The Tribunal did not require the first appellant to change or conceal his political views, considered relocation in a practicable way as an alternative finding, was not required in the protection visa statutory framework to treat the children's best interests as a primary consideration, did not make an unsupported assumption of family support, could not have erred by failing to consider political events occurring after its decision, and did not fail to consider a direct-threat claim to the children because such a claim did not squarely arise. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
30 May 2019
Procedural Posture
Migration Appeal From Orders Dismissing an Application for Judicial Review of a Protection Visa Refusal Decision / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['protection Visas' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'political Opinion Claims' 'internal Relocation' 'best Interests of Children' 'complementary Protection']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visas' 'jurisdictional Error' 'leave to Raise New Grounds on Appeal' 'political Opinion Claims' 'internal Relocation' 'best Interests of Children' 'complementary Protection']

Case Brief

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Procedural Posture

Migration Appeal From Orders Dismissing an Application for Judicial Review of a Protection Visa Refusal Decision / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ['Whether leave should be granted to rely on grounds of appeal not raised before the Federal Circuit Court.' 'Whether the Tribunal required or expected the first appellant to modify his political conduct or views contrary to Appellant S395/2002.' 'Whether the Tribunal failed to consider the practicalities of relocation within Sri Lanka.' "Whether the Tribunal was required to consider the best interests of the appellants' children as a primary consideration." 'Whether the Tribunal made an unfounded assumption that the appellants would have family support in Sri Lanka.' 'Whether political events in Sri Lanka after the Tribunal decision could make the Tribunal decision legally unreasonable.' 'Whether the Tribunal failed to consider a claim that the third and fourth appellants had received threats.']

Ratio Decidendi

Leave to rely on the new grounds was refused because none had sufficient merit. The Tribunal did not require the first appellant to change or conceal his political views, considered relocation in a practicable way as an alternative finding, was not required in the protection visa statutory framework to treat the children's best interests as a primary consideration, did not make an unsupported assumption of family support, could not have erred by failing to consider political events occurring after its decision, and did not fail to consider a direct-threat claim to the children because such a claim did not squarely arise. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The first and second appellants pay the first respondent's costs as agreed or taxed."]